2011-10-25 Six years after Subic rape incident, still no closure on VFA controversy

The October 26 visit to the Philippines of US Assistant Secretary of State for East Asia and the Pacific Kurt Campbell should be viewed as significant, coming as it is 6 years after the Subic rape incident involving four US Marines and a Filipina. Of course the US would now argue that no rape ever took place and proof of this was the acquittal of the principal accused, Lance Corporal Daniel Smith, by an appeals court which reversed an earlier conviction by a lower court. The acquittal of course was surrounded by questionable circumstances.

But beyond the verdict of the courts, what the Subic rape incident did was expose the lopsidedness of the RP-US Visiting Forces Agreement. The VFA, which was ratified by the Philippine Senate in 1999 (but not by the US Senate), sets the legal framework for the treatment of visiting US troops.

On November 1, 2005, a Filipina was allegedly raped inside a van and then left half-naked on the sidewalk in the former Subic US military base. Four visiting American soldiers were arrested. Their defense: only one of them engaged in consensual sex with the victim. The victim meanwhile said she was intoxicated and tried to resist the sexual advances of Smith. The other US soldiers cheered as the rape took place.

The Subic rape case triggered a controversial custody issue involving Smith, the US embassy and the Philippine government. While a Philippine court took jurisdiction over the rape case, Smith and his co-accused Staff Sergeant Chad Carpentier, Lance Corporal Keith Silkwood, and Lance Corporal Dominic Duplantis were placed under the custody of the US embassy in Manila because this was what the VFA supposedly mandated.

When a guilty verdict was issued by a Regional Trial Court, Smith was handed a life sentence and ordered detained at the Makati City Jail. His three other co-accused were acquitted and were immediately spirited out of the country back to Okinawa.

Wikileaks cables showed that the US embassy protested Smith’s detention in a Philippine jail and put considerable pressure on the Philippine government to get Smith back in US custody pending the appeal of his case.

In a cable dated December 4, 2006 (06MANILA4880), Kenney said that she and the Deputy Chief of Mission “protested vigorously to senior GRP officials over Smith's detention in Philippine custody.”

“In recent days and weeks, Ambassador and senior Embassy officials had underscored to senior Philippine government officials that, in the event of any convictions, the U.S. would retain custody, as provided by the VFA, until the end of all judicial proceedings, including appeals. We have urged that Smith's defense attorney, as well as the Philippine Department of Justice, immediately file a new motion for reconsideration of the custody issue (as well as on the verdict itself),” Kenney reported.

The US protests seemed effective since Kenney reported that “Philippine Cabinet officials are conferring with President Arroyo to seek a way out of the impasse over custody triggered by Judge Pozon's order. The Secretary of Justice and the Department of Foreign Affairs have released statements supporting the view that Smith should be in U.S. custody during his appeal, according to VFA”.

The US embassy and the Philippine’s DFA reached an agreement to transfer Smith back to the US embassy just a few days after his detention at the Philippine jail. The transfer sparked protests from cause-oriented groups and lawmakers. This served as a cause of action for various groups to go the Philippine Supreme Court and ask for the nullification of the VFA.

The Supreme Court, voting 9-4, upheld the constitutionality of the VFA but would go on to say that the transfer of Smith was not in accord with the VFA. The court ordered the transfer of Smith to a Philippine facility after negotiations between the US and Philippine governments. The court did not specify the timeframe of the transfer. This gave the Philippine government and Smith’s lawyers time to appeal the SC decision.

It was during this period that Smith’s appeal on his rape case with the Philippine Court of Appeals was decided. Smith was acquitted, thus making the issue of his custody moot and academic. Smith was immediately flown out of the Philippines by the US government. The acquittal was met with protests and criticism from various sectors.

VFA custody provisions remain unresolved

The Wikileaks cables clearly show that there were problems in the custody provisions of the VFA. In one embassy cable dated April 27, 2009 (09MANILA903), after the acquittal of Smith, US ambassador Kristie Kenney admitted that custody provisions of the VFA were ambiguous and that clarifications had to be made.

“Given ambiguity in the VFA about both where custody lies following initial conviction of U.S. servicemen and detention facilities where they should be held, we believe it is important that we begin discussions on how we clarify these undesignated requirements and whether there is a more workable, less debilitating, custody process,” Kenney said

And for all its insistence of keeping custody of Smith, the US embassy admitted that it was not capable of serving as a detention facility.

“The last three-and-a-half years have clearly demonstrated that U.S. Chancery grounds are not appropriate detention facilities to hold such servicemen in custody, not least because Mission personnel have neither the resources nor expertise to serve as jailors. We believe that the unusual situation of having a diplomatic facility as a place for detention should be clarified in future discussions with the Philippine government,” Kenney said in the confidential cable.

In the same cable, then Foreign Affairs Secretary Alberto Romulo told Kenney “that he was pleased with the outcome of the case, attributing the success on the excellent collaboration the Philippine government had enjoyed with the Embassy”.

Romulo said that “with several thousand U.S. servicemen currently in the Philippines for the Balikatan bilateral (military) exercises, it was imperative that both sides completely followed the letter of the VFA”.

In another cable dated September 18, 2009 (09MANILA2000), Kenney again admitted problems with the VFA but cautioned against renegotiation.

“Post would welcome a review by US Government lawyers to determine the best approach we can take to clarify the custody provisions. Following such a review, Mission would aim to establish this clarification through quiet discussions that would allow us to reach a common understanding with the Philippine government without the need to formally renegotiate the entire VFA,” Kenney said.

During the 2010 presidential campaign, President Benigno Aquino III promised to review the provisions of the VFA in relation to the custody of erring US troops because of the problems encountered in the Subic rape case. A review panel involving the Office of the Executive Secretary, Department of Justice and the DFA was formed but no results have been released. ###